Judge backs car dealer that fired employee over Facebook post

A BMW car dealership in Lake Bluff did not violate federal labor law in firing a salesman after he embarrassed the company in a Facebook post, an administrative law judge at the National Labor Relations Board has ruled.

The decision is a small victory for employers that are trying to balance employees' free speech rights with their own desires to protect the company image. Social media has complicated this balancing act because complaints or gossip about the workplace that used to be water-cooler talk can now reach millions of people on Facebook or Twitter.

The National Labor Relations Board has created some fear in corporate America by going after companies that have fired workers for making disparaging remarks about their employers on Facebook. And the ruling involving Karl Knauz BMW shows that there is a fine line between appropriate and inappropriate online speech.

The NLRB filed a complaint on behalf of Robert Becker against Karl Knauz BMW after the dealership fired him June 22, 2010. A week earlier Becker had posted comments and pictures on Facebook of a sales event in which the dealership served hot dogs and bottled water to customers.

Becker mocked the dealership for serving cheap food at a sales event for a luxury car. "I was happy to see that Knauz went 'All Out' for the most important launch of a new BMW in years," Becker wrote on Facebook, according to court papers.

That same day, he posted pictures of an accident at a neighboring Land Rover dealership, which is also part of the Knauz group. A sales representative allowed a customer's 13-year-old son to sit in the driver's seat of a vehicle. The teen drove the vehicle down a small embankment into a pond.

With the accident pictures, Becker wrote, "This is your car: This is your car on drugs."

Management of the BMW dealership didn't like the negative and sarcastic tone of Becker's comments and asked him to delete the posts, which he did, but he later was fired after a managers meeting.

The NLRB alleged that Becker's Facebook posts were protected speech and the dealership could not fire him. Before Becker went online, the NLRB said, he and other sales agents had expressed concerns that the unremarkable food and beverage would send the wrong message to customers and hurt their sales and commissions. In legal terms, the NLRB said Becker's online comments were "protected concerted activity."

Judge Joel Biblowitz in his ruling issued Wednesday agreed that Becker's online posts about the sales event were protected by federal law. But the judge found that his comments and pictures about the Land Rover accident were "neither protected nor concerted activities" because they had nothing to do with his conditions of employment.

Biblowitz had to decide whether the dealership fired him for the sales event post, the accident post or both. The dealership's general manager testified at an NLRB hearing that he found Becker's online comments about the sales event "somewhat comical" and that he was more upset with negative comments about the accident.

The judge leaned on the general manager's testimony and other evidence from the dealership to find that Becker was fired because of the Facebook post about the Land Rover accident.

James Hendricks, the dealership's attorney, said the company is happy that its reason for firing Becker was upheld. But he also said the ruling makes social media more confusing for employees and employers.